92 Decision Citation: BVA 92-12575
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-00 081 ) DATE
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THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
Richard D. Turano, Associate Counsel
INTRODUCTION
The veteran had recognized guerilla service and service with
the Philippine Army from December 1944 to March 1946. He
died in April 1989. This matter came before the Board on
appeal from September 1990 and July 1991 decisions from the
Manila, Philippines, Regional Office. A notice of
disagreement was received in November 1991. A statement of
the case was issued in December 1991. A substantive appeal
was received in February 1992. The appeal was docketed at
the Board in February 1992. The appellant acts as her own
representative in this matter.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in substance, that the veteran's
service-connected disability, the residuals of a shell
fragment wound to the right shoulder, caused the veteran's
health to deteriorate thereby contributing to the cause of
his death. The appellant asserts that the cause of the
veteran's death as reported on his certificate of death is
incorrect and that an attempt was made to correct this error.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim
is well grounded.
FINDINGS OF FACT
1. The veteran died in April 1989 at the age of 74 years as
a result of congestive heart failure.
2. During his lifetime, service connection was established
for residuals of a shell fragment wound to the right
shoulder affecting Muscle Groups III and VI evaluated as
30 percent disabling and osteomyelitis, proximal end of the
right humerus, residuals of shell fragment wound to the
right shoulder and arm, evaluated as noncompensable.
3. A heart disability or cardiovascular disease was first
medically demonstrated many years after service discharge.
4. The veteran's service-connected disabilities did not
cause or contribute to the cause of his death.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well-grounded
claim. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5107;
38 C.F.R. §§ 3.307, 3.309, 3.312.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran, who was 74 years of age, died at home in April
1989. The certificate of death indicates that the veteran
died as a result of congestive heart failure. The appellant
has asserted that the actual cause of the veteran's death
was the result of his service-connected residuals of a shell
fragment wound to the right shoulder and, therefore, service
connection for the cause of the veteran's death is
warranted. The threshold question to be answered in this
case is whether the appellant has presented evidence of a
well-grounded claim, that is, one which is plausible. If
this is not the case, there is no duty to assist the
appellant in the development of her claim because such
additional development would be futile. 38 U.S.C.
§ 5107(a). As will be explained below, the Board finds that
the appellant's claim is not well grounded.
The certificate of death indicates that the cause of the
veteran's death was congestive heart failure. This
certification was based on information provided by the
appellant at the approximate time of the veteran's death.
She has asserted that this information is incorrect and that
a document denoted as "annex a" which purportedly states
that the actual cause of death was secondary to the old
gunshot wound to the right shoulder, supports her assertion
that an attempt to correct the certified cause of death was
made. However, this undated, unsigned paper is not credible
since there is no basis to dispute the finding certified on
the certificate of death.
A review of the veteran's service medical records fails to
demonstrate any heart disability or disease. On an
examination in October 1945, the veteran's cardiovascular
system was normal. His blood pressure was 106/70. On
examination at the time of the veteran's discharge from
service, again his cardiovascular system was normal and
blood pressure was 120/84. On VA examination in January
1961, his blood pressure was 140/90. From August to
September 1972 the veteran was hospitalized for evaluation
of pain and limitation of motion of the right shoulder,
present since an inservice shell fragment wound. The pain
was relieved with analgesics. No reference was made to
heart pathology. Blood pressure readings on VA examinations
in January 1973 and January 1975 were also within normal
limits. The first documented evidence of a possible heart
disability is in a letter dated in February 1984 which
discloses that the veteran was examined and treated for
chronic hypertensive disease with a blood pressure of
176/100. Therefore, it is the judgment of the Board that a
heart disability was not present in service nor was
cardiovascular disease manifested within one year of service
discharge. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.
It has not been shown that the service-connected disability
caused any overall deterioration of the veteran's health so
as to hasten his death in any manner. No medical evidence
has been submitted regarding treatment for the
service-connected disabilities after 1972. Although the
shell fragment wound residuals of the right shoulder
undoubtedly adversely affected the veteran's daily
activities, they apparently had remained stable following
the initial period of healing and it cannot be concluded
that they played a role in his demise. An October 1991
affidavit by Nelly D. Gusman concerns the veteran's health
after the 1972 hospitalization, but provides no basis for
concluding that his death was due to other than congestive
heart failure. Therefore, it is the judgment of the Board
that the veteran's service-connected disabilities did not
cause or contribute substantially or materially to the cause
of the veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312.
Consequently, the appellant cannot meet the initial burden
of presenting evidence of a well-grounded claim imposed by
38 U.S.C. § 5107, and that service connection for the cause
of the veteran's death must be denied.
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
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NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.